PAIL Institute Publications

PAIL Institute Monograph Series

The Role of Domestic Courts in the International Legal Order

Author(s): Falk, Richard A.

Hardcover - 173 pages (1964)
ISBN: 1-57588-358-9; LC: 64-16924

Current Price: US $42.00

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About This Publication

This book "intends to be radical," says Professor Falk. The obvious inadequacy of traditional international law, evolved in times of laissez-faire economics and colonization, suggests the obvious importance of the broadening of international law to reflect tolerance for the diverse social and economic systems of today. Such tolerance is a sine qua non in a world of nulcear weapons.

Professor Falk here investigates how active or passive the domestic courts should be in the development of a rule of international law. He discusses international jurisidiction (horizontal and vertical forms of legal order), domestic courts and foreign wars (civil and international), questions of sovereign immunity and act of state, and problems of allocation and choice of law.

How does a domestic court strike a balance bewteen international legal order and national interest? This question gives rise to others: To what extent should a domestic court suspend its normal application of international law in order to avoid conflict with relevant executive policy? Is it efficacious to allow the vagaries of international relations to control the outcome of legal controversies in domestic courts? Does a commitment to the rule of law presuppose that intergovernmental relations are irrelevant to the outcome of a specific controversy?

Professor Falk views the transformation of international society as the only alternative to global tragedy. This book, in a felicitous essay style and with broad legal-philosophical reference, challenges all those who contribute to judicial outcome in the international law cases before domestic courts.

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About The Author(s)

Richard A. Falk is the Albert G. Milbank Professor of International Law and Practise, Princeton University, a prolific writer, speaker and activist of world affairs and the author or co-author of more than 20 books.

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Reviews

Simmonds, International and Comparative Law Quarterly
This is the third volume to appear in the series on 'Procedural Aspects of International Law' edited by Professor Richard B. Lillich. . . . The author is to be congratulated on a book that is refreshingly novel in approach, vital and immediate in its impact, and uncompromising in its assertion and defence of international legal tolerance for diverse political, social and economic systems. This is an important book and one which deserves wide attention. It is also a distinguished contribution to a most useful series.

Dawson, Syracuse Law Review
This well-written book, the third volume in the Procedural Aspects of International Law Series. . ., discusses a controversial subject in a provocative manner. Because Professor Falk's underlying thesis was adopted last spring by the United States Supreme Court in Banco Nacional de Cuba v. Sabbatino, his book is both timely and important.

Taubenfeld, Fordham Law Review
[T]he book is exciting and offers many fresh insights in what is at this time a lively area of controversy in international law. For his review of the Sabbatino case alone, Professor Falk demands reading; his admirers and detractors will form small but vigorous armies. What more need be said about an author who 'intends to be radical'?

Baldwin, Saint Louis University Law Journal
This thoughtful book educates, clarifies, intrigues and occasionally infuriates. I recommend it highly for both beginners in international law studies and for older hands because it is one of those rare books supplying profitable reading to supplement a basic international law course, and offering incisive comments to those who think themselves familiar with the international law problems confronting domestic courts. When the policies underlying the familiar doctrines of sovereign immunity and act of state are examined carefully by an analyst such as Richard Falk, we all have much to learn, although we need not agree with all his assumptions, values or conclusions. The author intends to make us think, and he succeeds.

Stumpf, Western Political Quarterly
This is an important book on an important subject.

Lauerman, Journal of Legal Education
[A] scholarly and stimulating book. . . .

Wilson, American Journal of International Law
Whether readers agree or disagree with its main thesis, the book should serve the useful purpose of stimulating hard thought in regard to the essential nature of the international community legally viewed, the proper function of municipal courts in relation to this community, and the continuing need for devices that will make for peaceful relations in a world where the danger of destruction is a prime factor.

Chayes, New York University Law Review
This is an important book not primarily for what it says about Sabbatino and the act of state problem--although this is interesting and a good deal more illuminating than much contemporary comment--but for the deeper implications of Professor Falk's approach to international law.

Tucker, Harvard Law Review
One cannot but admire what Mr. Falk has undertaken to do. In an area of the law where new thoughts and new tools are sorely needed, one finds in Falk's offering the type of creativity that is too often absent in times of crisis. Those interested in a well-written and succinctly stated analysis of the current state of international law in the area of private property rights and expropriation by foreign governments, and a theory upon which a new body of legal rules can be predicated, would do well to read The Role of Domestic Courts in the International Legal Order. For the old-timers in the field of international law, as well as for the newcomer to the study of problems inherent in any attempt to change long established standards, reading Mr. Falk's book is certain to be a very rewarding experience. It should not be delayed.

Macdonald, Duke Law Journal
This reviewer cannot overlook. . . the enthusiasm of his response to Falk's ideas in this book. The dusk-jacket says that he 'challenges all those who contribute to judicial outcome in international law cases before domestic courts.' That is an understatement.

Blackwood, University of Pittsburgh Law Review
After finishing this book some readers will disagree completely with its author. Others will enthusiastically endorse his proposals. Both groups, however, must readily admit that Professor Falk's reasoning has already made a considerable jurisprudential impact upon contemporary legal history.

Connell, New York Law Forum
This book is excellent in many respects. It is written in a refreshing style and is thoroughly stimulating. Professor Falk's description and analysis of the present state of inter-national relations is superb, and it would be difficult to argue with his goal. . . . Although some international lawyers will have reservations about Professor Falk's thesis, there can be no doubt that he has written a thoroughly stimulating book. This book is a worthwhile addition to The Procedural Aspects of International Law Series and deserves to be read with much thought and attention.

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Availability

The Role of Domestic Courts in the International Legal Order is available from:

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The Role of Domestic Courts in the International Legal Order is also available from Amazon.com.

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Table of Contents

	Foreword		vii
	Preface		xi
	Acknowledgments		xiii
I.	Domestic Courts and World Legal Order: A Statement of Purpose and Outlook		1
II.	Domestic Courts, the Modern State, and World Legal Order		14
	The Position of the State in Contemporary World Politics		14
	The Impact of the State upon the Courts		19
III.	International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order		21
	The Basic Horizontal Emphasis of International Legal Order		24
	Observations on the Delimitation of Legal Competence by the United States		27
	Some Aspects of a Horizontal Idea of International Legal Order		39
	Conclusion		50
IV.	The Relevance of Contending Systems of Public Order to the Delimitation of Legal Competence		53
V.	Toward a Theory of the Participation of Domestic Courts in the World Legal Order: A Critique of Banco Nacional de Cuba v. Sabbatino		64
	Nuclear Weapons, the Cold War, and Socialism		67
	Exposition		77
	Critical Commentary		84
	The Argument Concluded		112
VI.	The Further Search for Principles in the Sabbatino Case		115
	Judge Waterman's Opinion		118
	A Note of Commendation		123
	Sabbatino and the Restatement		129
	Sabbatino and the "Solicitor General's Memorandum Recommending U.S. Supreme Court Review"		131
	The Sabbatino Brief for the United States as Amicus Curiae		132
	Conclusion		137
VII.	Sovereign Immunity: A Discourse on Recent Havoc		139
	Sovereign Immunity and Act of State: A Policy Contrast		139
	Rich v. Naviera Vacuba, S.A.: The Status of Sovereign Immunity in Domestic Courts Today		145
	Some Comments on the Commercial Exception to the Rule of Immunity: Doctrine and Policy		158
	Persons, Things, and Claims		164
	Sovereign Immunity and World Order		167
VIII.	Domestic Courts and World Legal Order: Concluding Comments		170
	Index		179